296 F.

2d 893

Wesley CARMACK, Appellant,

v.
UNITED STATES of America, Appellee.
No. 6825.

United States Court of Appeals Tenth Circuit.

Dec. 7, 1961.

No appearance for appellant.

Edwin Langley, U.S. Atty., Muskogee, Okl., for appellee.
Before MURRAH, Chief Judge, and PICKETT and HILL, Circuit Judges.
PER CURIAM.

The appeal is taken from an order of the court below, denying appellant's
motion to vacate sentence filed under 28 U.S.C. 2255.

Appellant and one William Poat O'Neal were jointly indicated on two counts.
The first count charged a conspiracy to transport women in interstate commerce
for the purpose of prostitution, in violation of 18 U.S.C. 371. One of the overt
acts alleged in connection with this count was the transportation of Evona Lou
Powers and Charlcie Alford from Fort Worth, Texas, to Muskogree, Oklahoma.

The second count of the the indictment charged the transportation of these
same two females in interstate commerce from Fort Worth, Texas, to
Muskogre, Oklahoma, for the purpose of prostitution and debauchery, in
violation of 18 U.S.C. 2421.

The defendants were convicted and sentenced on both counts. Appellant's

sentences were adjudged to run consecutively and O'Neal's sentences were
adjudged to run concurrently. O'Neal appealed his conviction and it was
affirmed (O'Neal v. United States, 10 Cir., 240 F.2d 700). Appellant did not
appeal, but thereafter filed a motion under 28 U.S.C. 2255, which motion was

denied by the trial court, hence this appeal.

5

Two contentions are made by appellant on this appeal. (1) Separate sentences
may not be imposed for conspiracy to transport women in interstate commerce
for the purpose of prostitution, and also for the substantive offense of
transporting the same women in interstate commerce for that purpose. (2) The
trial court was without authority to impose consecutive sentences for the two
crimes charged in the indictment.

The first contention of appellant is without merit. Callanan v. United States,

364 U.S. 587, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961); Pereira v. United States, 347
U.S. 1, 7, 74 S.Ct. 358, 98 L.Ed. 435 (1954); Pinkerton v. United States, 328
U.S. 640, 643-644, 66 S.Ct. 1180, 90 L.Ed. 489 (1946). Unquestionably a
conviction for conspiracy may be had even though the substantive offense was
completed. It is only the identity of the offenses which is fatal. Velasquez v.
United States, 10 Cir., 244 F.2d 416, 419 (1957). In the instant case, no such
identity occurs since the agreement to do an unlawful act is distinct from the
doing of the act itself.

Appellant's second contention is equally without merit. It is so firmly

established in the law that sentences for separate crimes may be consecutive
that there is no need in discussing the proposition at any length. The power to
impose consecutive sentences is inherent in the court. Sherman v. United
States, 9 Cir., 241 F.2d 329, 336-337 (195() cert. den. 354 U.S. 911, 77 S.Ct.
1299, 1 L.Ed.2d 1429, and cases cited therein.

We, therefore, conclude that the separate and consecutive sentences imposed by
the court upon the appellant for the crime of conspiracy and for the substantive
offense, which was the object of the conspiracy, are valid and the court
properly denied the appellant's motion.

Affirmed.